Opinion
No. COA09-1091.
Filed April 6, 2010.
Wake County No. 07 CRS 42960.
Appeal by defendant from judgment entered 8 April 2009 by Judge A. Leon Stanback in Wake County Superior Court. Heard in the Court of Appeals 10 February 2010.
Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for the State. William B. Gibson, for defendant-appellant.
Where defendant failed to object at trial to the admissibility of his statements concerning his reasons for refusing a chemical analysis and where the defendant does not argue plain error, the question of the admissibility of these statements was not preserved for appeal. Where N.C. Gen. Stat. § 20-16.2 states that evidence of the fact of refusal of a chemical analysis is admissible at trial, defendant's trial counsel's failure to object at trial to admission of defendant's statements of reasons for refusal did not amount to ineffective assistance of counsel. Where Deputy Dimitri testified that defendant drove the wrong way down "Knightdale Boulevard or 64 Business," this Court takes judicial notice of the fact that 64 Business is part of the National System of Interstate and Defense Highways and other controlled-access highways. Defendant's motions to dismiss the charge against him under N.C. Gen. Stat. § 20-140.3(3) at the close of the State's evidence and the close of all evidence were properly denied.
I. Factual and Procedural Background
On 18 June 2007, Deputy Jason Dimitri (Deputy Dimitri) of the Wake County Sheriff's Department was in the parking lot of the Shell gas station on Knightdale Boulevard (U.S. Highway 64 Business) in Knightdale. Deputy Dimitri watched Mark Alexander Stevens (defendant) turn left out of the Shell parking lot and drive the wrong direction on a one-way street. Deputy Dimitri pulled defendant over, and conducted field sobriety tests that lead Deputy Dimitri to conclude that defendant was appreciably impaired. Deputy Dimitri placed defendant under arrest for Driving While Impaired (DWI). Deputy Dimitri then took defendant to the Wake County City-County Bureau of Identification (CCBI) for a chemical analysis of his breath. Defendant was informed of his chemical analysis rights, and stated that he was going to refuse the test so that he could "beat it in court."
Defendant was charged with DWI, and Unlawful Use of the Highway. On 8 April 2009, a jury found defendant guilty of DWI and responsible for Improper Use of the Highway. Judge Stanback found defendant to be a DWI prior record level 5 and sentenced him to 60 days. This sentence was suspended, and defendant was placed on supervised probation for 18 months. As to the Unlawful Use of the Highway charge, the trial court ordered defendant to pay the costs, and then remitted the costs. Defendant appeals.
II. Motion in Limine
In his first assignment of error, defendant contends that the trial court committed reversible error when it denied defendant's motion in limine and admitted into evidence testimony about defendant's alleged statements made in connection with his refusal to submit to chemical analysis. We disagree.
"A motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial." State v. Conaway, 339 N.C. 487, 521, 453 S.E.2d 824, 845 (citations omitted), cert. denied, 516 U.S. 884, 133 L. Ed. 2d 153 (1995); see also State v. Oglesby, 361 N.C. 550, 648 S.E.2d 819 (2007); State v. Tutt, 171 N.C. App. 518, 615 S.E.2d 688 (2005). Defendant failed to object to the admission of his statements concerning the reasons for his refusal of chemical analysis at trial; therefore, defendant did not preserve this right for appeal. Defendant also failed to argue plain error on appeal. Defendant's first assignment of error is dismissed.
III. Ineffective Assistance of Counsel
In his second assignment of error, defendant contends that his trial counsel's failure to timely object to admission of his statements concerning the reasons for his refusal of chemical analysis constituted ineffective assistance of counsel in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution. We disagree.
The two part test for determining whether a defendant received effective assistance of counsel was established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984). This test was adopted by the North Carolina Supreme Court in State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985). Strickland holds:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693. "Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." State v. Mason, 337 N.C. 165, 178, 446 S.E.2d 58, 65 (1994) (citation omitted).
Evidence of the fact of refusal of a chemical analysis is admissible at trial pursuant to N.C. Gen. Stat. § 20-16.2 (2009). Defendant's statements concerning the reasons for his refusal of the chemical analysis were relevant to the refusal, and are therefore admissible into evidence at trial pursuant to N.C. Gen. Stat. § 20-16.2. These statements were relevant, and their relevance outweighs any prejudicial effect they may have. "Evidence which is probative of the State's case necessarily will have a prejudicial effect upon the defendant; the question is one of degree." State v. Coffey, 326 N.C. 268, 281, 389 S.E.2d 48, 56 (1990) (citation omitted). Since defendant's statements were admissible this argument is without merit.
IV. Motion to Dismiss
In his third assignment of error, defendant contends that the trial court erred in its denial of defendant's motions to dismiss at the close of the State's evidence and all the evidence on the ground that there was insufficient evidence presented to the jury to prove that defendant violated N.C. Gen. Stat. § 20-140.3(3). We disagree.
A. Standard of Review
"Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied." State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (citation omitted), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). The court "must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences" that can be drawn from the evidence. Id. at 378-79, 526 S.E.2d at 455 (citation omitted). "If, however, when the evidence is so considered it is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator, the motion to dismiss must be allowed." State v. Malloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983) (citation omitted).
B. Analysis
Defendant was charged with and convicted at the trial court of violating N.C. Gen. Stat. § 20-140.3(3), which states "On those sections of highways which are or become a part of the National System of Interstate and Defense Highways and other controlled-access highways, it shall be unlawful for any person: . . . (3) To drive any vehicle except in the proper lane provided for that purpose and in the proper direction and to the right of the central driving curb, separation section, or line on said highways." Deputy Dimitri testified for the State that defendant drove the wrong way down "Knightdale Boulevard or 64 Business." This Court takes judicial notice of the fact that U.S. Highway Business 64 is a part of the National System of Interstate and Defense Highways and other controlled-access highways. Therefore, defendant's motions to dismiss the charge against him under N.C. Gen. Stat. § 20-140.3(3) at the close of the State's evidence and at the close of all evidence were properly denied. Defendant's third assignment of error is without merit.
Defendant's remaining assignment of error was not argued in his brief and is therefore deemed abandoned. N.C.R. App. P. 28(b)(6) (2009).
No error.
Judges MCGEE and BEASLEY concur.
Report per Rule 30(e).